Single Parents and Parental Orders Following Surrogacy

Following a recent change in the law, single parents may now apply to the courts for a parental order in respect of children they have had via a surrogacy arrangement.

In the UK a surrogate mother will always be the legal parent of a child until a parental order is obtained, and therefore a parental order is important because it ensures the removal of the surrogate’s rights and parental responsibility in respect of the child, and the transfer of those rights to the couple or person applying.

Previously, parental orders were available only to couples who were married, in a civil partnership, or living as partners in an ‘enduring family relationship’. However, following a High Court judgment in May 2016, it was ruled that the inability of a single person to obtain a parental order was not compatible with the European Convention on Human Rights, which has since led to the change in the law.

The applicant in the case was the biological father of the child whom the proceedings concerned (referred to as ‘Z’, and carried by a surrogate mother). The father sought a declaration of incompatibility under the Human Rights Act, because of the discrimination caused by the law in respect of his status as a single person.

The case in turn led to the passing of remedial legislation that since 3 January 2019 has allowed single parents to apply for a parental order.

It will also be possible for single parents who have already had children via surrogacy to apply for a parental order, though this is subject to a 6 month deadline, ending on 2 July 2019. Although it might be possible to apply past this deadline, such applications are likely to be significantly more complicated and legally complex.

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